Attorneys who represent the personal representative or otherwise provide services to the probate estate are generally entitled to fees as allowed under the Florida Probate Code. Fla.Stat. §733.6171. In order to be entitled to fees, however, the attorney, or anyone else (like an accountant) seeking fees from the estate must show that the services provided were beneficial to the estate. What constitutes a “benefit” to an estate is often subject to debate, but most will agree that an attorney benefits an estate by bringing about an enhancement in value or an increase in the assets of the estate or by aiding in establishing the intent of the decedent and the proper division of the estate generally. A good discussion of what benefits an estate can be found in Segal v. Levine, 489 So.2d 868 (Fla.3d DCA 1986). (more…)

Court of Appeals Says Curator Cannot Impose Lien on Occupied Homestead Property

What is a Curator?

Sometimes curators are appointed by the probate court to administer the estate under certain circumstances where a personal representative or executor cannot serve. There are a variety of these situations, but what always remains the same is the general duty of the curator to collect the testator’s effects, pay claims against his estate, and distribute the residue to those entitled. Also uniform, is the well settled law in Florida that curator or personal representative does not have an unrestricted right to use estate assets as his own, and the probate code provides that assets of an estate shall be assets in the hands of personal representative or curator for specific purposes only, with significant restriction that he or she act reasonably for the benefit of the interested persons. A curator’s possession of estate assets derives from his appointment and is not an individual right of possession; thus, the personal representative or curator acquires interest solely as fiduciary, holding legal title, but the representative does not hold beneficial title to assets and has no right to dispose of estate assets for his own use. (more…)

Fifth District Court of Appeals Encourages Legislature to Clarify Statute

The decision of whether and when to petition for incapacity of an elderly relative is challenging and can rarely be accomplished without the assistance of an experienced practitioner. However, even with an experienced attorney the frustration level is high for parties involved in the guardianship process, due in part to the lack of clarity and direction contained in the relevant portions of the law.

The procedure for asking a Florida court to declare someone incapacitated is codified in Florida Statute §744.331(4) which explains the process following the petition to determine incapacity:

“Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion[.]” (more…)

Fourth District Court of Appeals Reverses Broward County Probate Judge’s Order Requiring Trustee and Lawyer to Repay Fees to the Estate. Wintter & Associates, P.A. v. Terry Kanowsky, . 33 Fla. L. Weekly D2471a; — So.2d —-, 2008 WL 4643358 (Fla.App. 4 Dist, October 22, 2008.).

David Mercer, the executor of the Estate of Blanche Heische, and trustee of the Sixth Amended and Restated Declaration of Trust of Blanche Heische testamentary trust, submitted his final accounting to Broward County Probate Judge Mel Grossman. Because the trustee had performed what he considered “extraordinary” services in connection with work to clear title to a parcel of real property devised to him through the testator’s will, the trustee included extraordinary fees in his accounting. The residual beneficiary of the trust, Terry Kanowsky, objected to the “extraordinary” fee request in the accounting. Following an evidentiary hearing, Broward County Probate Judge Mel Grossman determined that the trustee was not entitled to extraordinary fees and costs and ordered the trustee and law firm to repay them to the probate estate. (more…)